When do you have the right to resist arrest?

The law acknowledges that citizens have a right to resist arrest if the arrest itself is unlawful. But it’s a “do so at your own risk” type of situation. Generally, officers will not arrest an individual without reasonable grounds that the person being arrested has or is about to commit an offence, or is otherwise a danger to themselves or others around them.

The right for a person to resist physical a threat is enshrined in the Canadian Criminal Code, under Section 34. This section allows individuals to commit an offence “for the purpose of defending or protecting themselves” or another person from threats of force. The caveat? The amount of force being used in defence has to be proportionate to the nature of the threat. Individuals are also restricted from claiming self defence against law enforcement, unless the law enforcement officer is acting “unlawfully.”

Whether an officer is acting lawfully or not is something typically only determined later in court. At the time of struggle, you may believe an officer is acting unlawfully and you were right to resist arrest. However, you may end up facing additional charges if the arrest turns out to be lawful. Even if you were right to resist arrest, you may still be committing an offence if you use too much force to resist.

An oft-cited judge in a 1975 case before the Supreme Court of Canada had this to say:

“Our law has not, as I understand it, deprived a citizen of his right to resist unlawful arrest. His resistance may be at his own risk if the arrest proves to be lawful, but so too must the police officer accept the risk of having effected a lawful arrest. Of course, even if the resisted arrest is unlawful, the person resisting may still become culpable if he uses excessive force.”

When does someone have the right to resist arrest?

Section 129 of the Canadian Criminal Code sets out that it’s an offence for anyone to resist or wilfully obstruct “a public officer or peace officer in the execution of his duty.”

The onus is on the prosecution to prove that an officer was in the execution of their duties when the arrest was made. The officer must also prove an arrest was required and justified, even if they were acting in the course of their duties. The courts have established that an officer may make an arrest as long as they are satisfied a person has or is about to commit an offence. Even if it turns out later that there was no offence, the officer may be justified in making an arrest at the time.

However, there are cases where the courts have found officers effectively assaulted members of the public during the course of an unlawful arrest. This has happened in the past where an officer failed to notify the person arrested that they are being detained, and the reasons for doing so, and laid their hands on the person anyway.

Man ‘entitled’ to resist arrest, says judge

In a 2009 case, a man was charged with assaulting two police officers after one of the officers laid a hand on his shoulder. The court found the officers had a “hunch” the man was involved in a crime, and had a right to ask the man to stop to answer questions. But that right did not allow the officers to then lay a hand on the man’s shoulder to get him to stop walking away.

The judge said:

“According, (the accused) was entitled to resist the unlawful assault by the officer, as long as he did not provoke the assault, and as long as the force he used was not intended to cause death or grievous bodily harm to the officer, and was no more than was necessary to enable him to defend himself.”

In this case, the man swung at the officer who put a hand on him. He was charged with assault but was later acquitted by the court. It’s important to note that while this man was right to resist arrest, that didn’t stop him from being tackled by four officers immediately after he swung his punch.

So. Just because you think an arrest is unlawful, and even if you are correct, you’re likely going to still be arrested at the time. Whether you were right to resist arrest is almost always decided later by the courts. However, if you had already resisted arrest, and believe you were right in doing so, give us a call. Let us take a closer look at your case. 604-685-8889.